"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
case illustrates to me the serious consequences to the Bar itself of not
affording the full protections of the First Amendment to its applicants for admission.
For this record shows that [the rejected attorney candidate] has many of the
qualities that are needed in the American Bar. It shows not only that [the
rejected attorney candidate] has followed a high moral, ethical and patriotic
course in all of the activities of his life, but also that he combines
these more common virtues with the uncommon virtue of courage to stand by his
principles at any cost.
It is such men as these who have most greatly honored the profession of the
law. The legal profession will lose much of its nobility and its glory if it is
not constantly replenished with lawyers like these. To force the Bar to become a
group of thoroughly orthodox, time-serving, government-fearing individuals is to
humiliate and degrade it.” In
Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429
(1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong
dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan,
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
Saturday, August 27, 2016
The 6th Circuit's strike at the Michigan's Sex Offender Registration Act helps towards the road to overturn the stifling occupational licensing schemes that cripple the U.S. economy and hurt employment opportunities and consumer choices
Under the guise of such laws, immature teenagers who have sex with one another, or who send nude pictures to one another, have been stripped, for life, of opportunities to go to school, live with their families, have proper jobs, have children or enjoy watching their children perform in different school activities.
As with other criminal cases, most sex offense convictions are obtained in this country on a plea bargain, with no jury reviewing the issues, and often when charges are fabricated through police or prosecutorial misconduct, but when the defendant has a "choice" - to plea to a lesser offense, register as a sex offender, but not go to jail, or to go to jail or prison for a long time.
As with other criminal cases, sex offender laws are racist and disproportionately target the poor, while white privileged male do not get jail time even when convicted by a jury, as the recent Brock Turner/ Judge Aaron Persky case showed.
With more and more municipalities enacting more and more ordinances and restrictions upon "registered sex offenders", with more and more states also piling up those restrictions at the state level, it becomes impossible for "registered sex offenders" to find a place to live or work in this country.
While not many people would be sympathetic to the plight of registered sex offenders, people do not realize how easy it is to be falsely accused of such a crime - and forced into a plea in order to avoid jail time, and that the evidence of a conviction on a plea bargain does not necessarily indicate guilt.
That is especially so with the Romeo and Juliet cases of consensual sex between underage "offenders", in underage children criminally charged for possession or distribution of child porn, or in cases where sex abuse charges are wielded as a means to get advantage in some other proceeding - civil rights, divorce, custody, inheritance.
On August 25, 2016 an amazing court case came from the U.S. Court of Appeals for the 6th Circuit.
Contrary to the usual tendency of federal appellate courts to put civil rights cases, especially those of "social pariahs" such as sex offenders, on a fast-and-sloppy track towards non-precedential summary orders (over 85% of federal appellate cases, and close to 100% of civil rights federal appellate cases are decided this way nowadays), the court actually issued a short, but well reasoned full opinion, striking as constitutional the entire sex-offender registration statute in the State of Michigan.
The decision is extremely well-reasoned and contains valuable analysis applicable not only to sex offender cases, but to all cases where the seemingly "civil" regulation is punitive in nature.
The determination whether the Michigan Sex Offender Registration Act (SORA) was an unconstitutional ex post facto law required a determination whether the law had a civil regulatory purpose or impose an additional punishment.
In determining that the law inflicted an additional punishment, the 6th Circuit performed a "history/traditional punishment" analysis, and concluded that SORA, even though it did not have legislative punitive purpose, in its application and effect mimicked the two historical criminal punishments of "banishment" and "shaming", and had close similarities to the current criminal punishments of parole and probation.
What is most amazing about the 6th Circuit's decision is that, instead of stopping at the determination, as the district court's did, that SORA had a "rational relationship to non-punitive purpose", which is how "regulatory" punishments that have little to no connection to their declared purpose are still upheld as constitutional by U.S. courts, the 6th Circuit went further and stated that:
"Intuitive as some may find this, the record before us provides scant support for the proposition that SORA in fact accomplishes its professed goal".
This is a huge step forward from the usual court reasoning that if any "rational" legislative intent and purpose can be found in a "regulatory" law, it is constitutional, without even an attempt to see whether the legislation does, in fact, serve its declared purpose in how it is applied.
In its analysis, the 6th Circuit points out to "the significant doubt cast by recent empirical studies on the pronouncement in [the 2003 Supreme Court decision upholding constitutionality of similar sex offender registration laws in Alaska] that '[t]he ris of recidivism posed by sex offenders is 'frightening and high'".
The court points out that "[o]ne study suggests that sex offenders (a category that includes a great diversity of criminals, not just pedophiles) are actually less likely to recidivate than other sorts of criminals", and that "[e]ven more troubling is evidence in the record supporting a finding that offense-based public registration has, at best, no impact on recidivism."
The court actually points out that SORA, according to one study, increased recidivism by making it impossible for registered sex offenders to have a proper lawful job and earn an honest living.
The court pointed out that parties in that particular lawsuit were unable to prove that residential restrictions in SORA result in reduced recidivism of sex offenders.
It is also amazing that the court - finally as to all courts - chastised the state government for not even trying to analyze data it had as to whether there are any positive effects from restrictions imposed by its regulatory scheme, in this case, of a sex offender registration statute, specifically, as related to the extraordinary restrictions on "where registrants can live, work, and 'loiter'".
In doing so, the 6th Circuit overruled the traditional non-interference approach of federal courts expressed by the district court judge Robert H. Cleland of the U.S. District Court for the Eastern District of Michigan:
In other words, the state legislature introduced a law imposing severe restrictions on where people can live, walk around or earn a livelihood, some politicians gained some political capital on passing the law, but nobody cared to think - before the enactment - whether the law has a likelihood to help what it is seeking to help with, and after the enactment, whether the law is actually helping what it was supposed to help.
This stone cast by a court at a state government's actions is enormously important in reaching beyond any regulatory schemes with declared purposes to help protect somebody from something without any evidentiary basis that it will or does deliver on the declared purpose.
The 6th Circuit's reasoning in this case can certainly be applied to schemes in occupational licensing that are currently stifling the U.S. economy, fail to protect consumers, and instead restrict consumer choices, make needed services unnecessarily more expensive and less in variety, and restrict the poor from moving up in life while engaging in an honest trade that they are skilled at - let's talk a poor person who can bake magnificent pies, but will never be able to come up with the money to pay up front for all the educational and licensing requirements to get a government's permission to earn a living through selling his or her baked goods, even though the licensing requirements, although "rationally related" to the regulatory purpose, protecting safety of consumers of those pies, is not actually linked to statistics showing any reduction of food poisoning by consuming baked goods.
Let's note that many if not all occupational licensing schemes have been introduced without any evidence-based justification, and carry a punitive element, making it a crime to practice a licensed occupation or profession without a license, and thus monetizing criminal law because only those having funds, not those who are the most skilled and honest workers in that profession, can pay for a license.
For example, the 6th Circuit ruled that "[t]he requirement that registrants make frequent, in-person appearances before law enforcement, moreover, appears to have no relationship to public safety at all. The punitive effect of these blanket restrictions thus far exceed even a generous assessment of their salutary effects".
Let's apply this statement instantly to the so-called "cottage food industry", the home-baked goods.
In the majority of states, there is a restriction on the gross sales of such goods before costly licensing requirements kick in.
Let's say, the restriction is that you cannot sell goods (in gross) for more than $15,000 a year.
Doesn't this restriction makes home-bake business deliberately unprofitable for, let's say, a stay at home mom, or especially for a single parent of several children?
Consider that to sell even $15,000 gross of home-baked goods, under the "lighter" licensing/registration requirements of the "cottage food industry", one needs to pay for:
2) the electric;
4) supplies - flour, sugar, salt, oil etc.;
5) shipping supplies;
Baking at a volume that will amount even to $15,000 a year will take considerable time, too. And, with the competition from larger bakeries who can drop prices to stifle out a competitor with better products, but less financial capacities, the need to keep prices low to sell anything at all may squeeze the actual profit margin to nearly nothing, making more sense for that parent to rather apply for public assistance than to work hours for literally nothing.
So, whatever is the "intended purpose" of the cottage food industry, its actual effect obliterating any possibility of profit by an arbitrarily imposed "gross sales" ceiling actually discourages people from engaging in this relatively easy trade, and thus leaving consumers with less choices, higher prices dictated by licensed bakeries that put their licensing costs into the price of products, and not necessarily better products than produced in an "Aunt Betty's kitchen" - probably, worse.
Yet, when such occupational licensing scheme is attacked, usually courts stop at the "legislative purpose rationally related to legitimate state interest to protect safety of consumers" and goes no further into the actual effect of the legislation and whether it delivers on its declared purpose.
And, since, if Aunt Betty sells $15,001.00 in a given year, she will likely be subject to criminal charges for practicing pie-baking without a license, this is exactly what the 6th Circuit described in relation to SORA, "[t]he punitive effects of these blanket restrictions thus far exceed even a generous assessment of their salutary effects /sic/" (I believe, the last word was meant as "purpose").
Leaving out SORA-specific statements in the 6th Circuit's decision, such as that SORA "consigns [registrants] to years, if not a lifetime, of existence on the margins ... from their own families with whom, due to school zone restrictions, they may not even live", the 6th Circuit actually made a statement that a regulatory scheme consigned those subject to it "to years, if not a lifetime, of existence on the margins, not only of society...".
By the way, here is the opinion of the district court that the 6th Circuit reversed.
That's exactly what occupational licensing restrictions do to the poor - consigning them to the margins of society and pushing them to depend on welfare where earning an honest living by selling products or services they make using their own skills - simply because their skills fall under an occupational licensing scheme and they do not have enough seed capital to pay for that licensing - or where, like in cottage food industry, the "lighter licensing" restrictions for home baked goods, specifically, the gross-sales cutoff at a low level, make production of those goods economically senseless.
In addition to reaching behind the usual "comity" non-interference argument of federal courts and actually looking at whether the legislature, punitive in its effect, does what it claims it does, the court made a strong statement on Ex Post Facto laws:
"... the fact that sex offenders are so widely feared and disdained by the general public implicates the core counter-majoritarian principle embodied in the Ex Post Facto clause. As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Such lawmaking has 'been, in all ages, [a] favorite and most formidable instrument  of tyranny".
And that applies to all punitive ex post facto laws, not just sex offender-related ones.
I have no illusions as to motivations of the 6th Circuit in making this decision.
I highly doubt that the decision was motivated by concerns about the rule of law.
Rather, the 6th Circuit clearly recognized the economic - and safety - impact of the overzealous SORA laws.
SORA, on the one hand, produced a lucrative cottage industry, and lobby, of sex offender counselors, but is at the same time imposing huge burdens on probation officers and financial support of enforcement of those laws, not counting that sex offenders cannot get honest jobs and may end up engaging in crimes in order to survive - the unintended, but clear consequence from a politically driven regulation that was not evidence based when introduced, or when enforced.
In any event, the 6th Circuit decision is definitely a breakthrough in overturning statutes and regulatory schemes hurting both the U.S. economy and people's individual human rights, and I hope that this case will have an enormous positive effect in everyday lives of many people - not just sex offenders. Of course, if the U.S. Supreme Court does not overturn it and does not tell lower federal courts to continue with their "we don't care what state legislature actually does as long as it declares a rational purpose" trend.